The U.S. Supreme Court
agreed to decide Friday whether a Los Angeles Superior Court judge was correct
in ruling that a murder defendant forfeited his right to object to the
admission of “testimonial” hearsay statements his victim made before her death
by killing her and thus causing her unavailability at trial.

The California Supreme
Court ruled in March that Dwayne Giles could not complain about his inability
to cross-examine ex-girlfriend Brenda Avie because he had made her
“unavailable” to testify by killing her.

Los Angeles Superior
Court Judge Victoria Chavez—who was subsequently elevated to the Court of
Appeal—and Div. Six of this district’s Court of Appeal had earlier reached the
same conclusion.

At his trial for Avie’s
murder, Giles unsuccessfully objected to the introduction of statements Avie
had made to police investigating a domestic violence incident involving her and
Giles several weeks before the killing.

Prosecutors proffered
the hearsay statements—in which Avie claimed Giles choked her, punched her, and
threatened her with a knife after accusing her of having an affair with a
female friend—to refute Giles’ portrayal of Avie as the aggressor on the night
of her murder.

Giles maintained that
Avie sought him out at his grandmother’s house, where he was staying, and
threatened to kill him and his new girlfriend, which prompted him to retrieve a
gun from the garage. She thereafter “charged” him, he claimed, and he
shot her fearing she had something in her hand. He denied intending to
kill her.

Over Giles’ objection,
Chavez Avie’s police interview remarks to be introduced into evidence on the
basis of Evidence Code Sec. 1370. The statute allows out-of-court hearsay
statements to be admitted if they describe the infliction or threat of physical
injury upon the declarant.

A jury found Giles
guilty of murder with personal use of a firearm, and Chavez sentenced him to 50
years to life in prison.

On appeal, he argued
that under Crawford v. Washington (2004) 1245 S. Ct. 1354, the admission
of Avie’s remarks to police violated his rights under the Confrontation Clause
of the U.S. Constitution because he was deprived of the opportunity to
cross-examine her regarding them.

The Court of Appeal held
that although Avie’s statements constituted testimonial hearsay evidence
generally barred by Crawford, they were admissible under the doctrine of
“forfeiture by wrongdoing.” Under that equitable doctrine, a defendant is
deemed to have lost the right to object to the admission of out-of-court
statements of a witness whose unavailability he caused.

The appellate justices
found the doctrine applied because there was clear and convincing evidence that
Giles produced Avie’s unavailability through criminal conduct.

Writing for the
California high court, Justice Ming W. Chin agreed, saying Crawford
preserved forfeiture by wrongdoing as a valid exception to the Confrontation
Clause.

Giles’ attorney, Marilyn
Burkhart of Los Angeles, asked the high court to take the case in order to
resolve a split of authority, post-Crawford, as to whether the exception
applies in cases where the defendant did not kill the victim in order to
prevent him or her from testifying.

“A forfeiture rule that
is triggered by mere causality emasculates the right to confrontation
guaranteed in Crawford, because this exception will swallow the rule and
it creates a perverse incentive for prosecutors to introduce hearsay rather
than provide an opportunity for cross-examination.” Burkhart wrote.

The state’s legal team,
including Deputy Attorneys General Kristofer Jorstad and Russell A. Lehman,
responded that “petitioner’s intent to kill [Avie]necessarily included an
intent to silence her” and that both pre- and post-Crawford precedent supports
admission of the statements.

University of Michigan
professor Richard Friedman, who writes extensively on Confrontation Clause
issues, filed an amicus brief urging the high court to take the case in order
to resolve the issue, while largely agreeing with the California courts’
analysis. Adoption of the “purpose” test argued for by the defense, he said, will
create exceptional difficulty in prosecuting domestic violence cases, among
other results.